Minimising

• Prepare detailed witness evidence from C as well as from friends and family
• Pictures of injuries / scarring / disfigurement
• Emphasise loss of amenity including sports, hobbies and leisure activities
• Loss of congenial employment NB still applies to (i) cases where C cannot continue with any employment at all; and (ii) C is unable to work at all (i.e. not just that they have returned to less rewarding work)
• Loss of leisure time
• Loss of marriage prospects
• Handicap on the accommodation market
• Spoilt enjoyment of a holiday

• Investigate causation (especially in relation to pre-existing injuries NB Kenth v Heimdale Hotel Investments Limited [2001] EWCA Civ 1283 re acceleration injuries)
• Video surveillance: malingering / exaggeration
• Emphasise what C can do and the activities he or she has been able to return to
• Law Commission’s paper No. 257 re loss of congenial employment:  “merely an aspect of pain, suffering and loss of amenity”.  No need for other heads of non-pecuniary loss beyond pain and suffering and loss of amenity. Also see Willbye v Gibbons [2003] EWCA 372
• No precedent re handicap on accommodation market

Maximising

Minimising

• Check and include uplifts for pay rises (or alternatively use the AEI: Smith v Rod Jenkins [2003] EWHC 1356)
• Calculate the loss of perks and benefits (e.g. private healthcare and subsided food/travel)
• Take instructions upon and secure supporting evidence regarding Promotion prospects)
• The starting point discount for contingencies other than mortality is Tables A-C of the Ogden Tables: Herring v MOD [2003] EWCA Civ 528
• Argue for “reasonable career model” without no discount for loss of a chance: Herring v MOD [2003] EWCA Civ 528
• Claim for lost years where reduced life expectancy
• Fall back on NAE statistics (NB geographical location; and “cut above the rest”: M v Leeds HA [2002] PIQR Q46)
• Discrepancy between female / male earnings – discrimination: Clarke v Powell 11/6/04, Lawtel Document No AM0900740

• Deduction for tax, NI and pension contributions
• Deduction for travel and other expenses: see Eagle v Chambers [2003] EWCA Civ 1107.
• Shouldn’t use index other than RPI: Cooke v United Bristol Health Care [2003] EWCA Civ 1370
• Discount for contingencies other than mortality - generally higher for women: M v Leeds HA [2002] PIQR Q46
• Causation – risk of suffering similar injury and loss of earnings in any event: Heil v Rankin & MIB [2002] PIQR Q16
• Argue for discount in relation to a loss of a chance or a loss which does not occur for sometime: Jennifer Anne Brown V Ministry Of Defence [2006] EWCA Civ 546
• Split multipliers: the further away the loss, the greater the discount for accelerated receipt
• Residual earning capacity – NB fall back on NAE or ASHE statistics

Maximising

Minimising

• The need for two carers to enable C to live an ordinary life: A v B Hospitals NHS Trust [2006] EWHC 1178 (QB) [NB also the Working Time Regulations]
• In principle C should be free to choose to set up a private care regime and it would not amount to a failure to mitigate loss refusing to rely on state provision: Freeman v Lockett [2006] EWHC 102 (QB)
• No threshold for recovery of gratuitous care: Giambrone v JMC Holdings [2004] EWCA Civ 158
• Hospital visits if aid to recovery: e.g. Owen v Brown [2002] EWHC (QB) in which Silber J allowed 12 hours of gratuitous care per day even though C was in hospital
• No discount for gratuitous care where no uplift for care provided during evenings, weekends and unsociable hours: Newman v Folkes [2002] EWCA Civ 591
• Emotional care: Evans v Pontypridd Roofing [2001] EWCA Civ 1657
• Witness evidence re actual care provided and current needs
• Reasons for agency care
• Respite care to give main carers a break
• Add on costs re insurance, ERNIC, holidays, training, pay roll, food, advertising, recruitment etc see e.g. Lynham v The Morecambe Bay Hospital NHS Trust [2002] EWHC 823; Stuart v Martin [2001] All ER(D) 401 (Oct); Taylor v Weston AHA [2003] All ER (D) 50 (Dec)
• Assistance dog-walking, window cleaning etc.
• Assistance with paperwork and household management: Goldfinch v Scannell [1993] PIQR Q143 and O’Brien v Harris (22.2.01, unreported, QBD)

• Local authority or PCT will provide and/or make top up payments: Sowden v Lodge [2004] EWCA Civ 1370 and Crofton v NHSLA [2006] Lloyd’s Rep Med 168
• Section 5 of Admin of Justice Act 1982, saving to injured person whilst being maintained in hospital, nursing home or other institution = offset against loss of earnings
• Gratuitous care must go “distinctly beyond the ordinary regime of family life”
• Normal discount for gratuitous element of 25%: Evans v Pontypridd Roofing [2001] EWCA Civ 1657
• Money held on trust and arguably should be no award if unlikely to be effective: ATH v MS [2002] EWCA Civ 792
• The ceiling principle: Housecroft v Burnett [1986] All ER 332.
• Past care – (not including physical care assistance): NB Daly v General Steam Navigation Co Ltd [1981] 1 WLR 120
• Rate: home helps (Spine point 8 of NJC rates rather than BNA)
• Deductions to avoid double recovery e.g. payments received from the ILF (Dorrington v Lawrence [2001] All ER (D) 145 (Nov)]; and receipt of Carer’s Allowance
• Case managers ? whether needed at all – see Thrul v Ray [2000] PIQR Q44
• Past expenses on case management etc = low despite interim payments; unlikely to be spent in future
• Causation - ? care that would have been required in any event
• The effect of old age – particularly with regard to the need for assistance with domestic chores